Brandywine Realty Trust
2,000,000 Common Shares(1)
of Beneficial Interest
($.01 par value)
Underwriting Agreement
New York, New York
June 13, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Brandywine Realty Trust, a real estate investment trust organized under
the laws of the State of Maryland (the "Company"), proposes to sell to you (the
"Underwriter"), 2,000,000 common shares of beneficial interest, par value $.01
per share (the "Common Shares") of the Company, (said shares to be issued and
sold by the Company being hereinafter called the "Underwritten Securities"). The
Company also proposes to grant to the Underwriter an option to purchase up to
300,000 shares of Common Shares to cover over-allotments (the "Option
Securities"; the Option Securities, together with the Underwritten Securities,
being hereinafter called the "Securities"). The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Any
reference herein to the Registration Statement, a Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act (as defined herein) on or before the Effective Date (as defined
herein) of the Registration Statement or the issue date of such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 16 hereof.
- ------------------------
(1) Plus an option to purchase from the Company up to 300,000 additional
Securities to cover over-allotments.
The Company, directly and through a wholly-owned subsidiary, is the
sole general partner and a limited partner of Brandywine Operating Partnership,
L.P., a Delaware limited partnership (the "Operating Partnership"). The Company
owns its assets and conducts its operations through the Operating Partnership
and through subsidiaries of the Operating Partnership. As of March 31, 2003, the
Company's ownership interest in the Operating Partnership entitled the Company
to approximately 95.2% of the Operating Partnership's distributions after
distributions by the Operating Partnership holders of its preferred units. The
Company will contribute the net proceeds of the sale of the Securities to the
Operating Partnership in exchange for additional partnership interests in the
Operating Partnership. The Company and the Operating Partnership wish to confirm
as follows their agreement with you, in connection with the purchase of the
Securities by the Underwriter.
1. Representations and Warranties. The Company and the Operating
Partnership jointly and severally represent and warrant to, and agree with, the
Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act (as defined herein) and has prepared and filed with the Commission (as
defined herein) a registration statement (file number 333-56237) on Form
S-3, including a related preliminary prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have filed
one or more amendments thereto, including a related preliminary prospectus,
each of which has previously been furnished to you. The Company will next
file with the Commission one of the following: either (i) prior to the
Effective Date of such registration statement, a further amendment to such
registration statement, (including the form of final prospectus) or (ii)
after the Effective Date of such registration statement, a final prospectus
in accordance with Rules 430A and 424(b). In the case of clause (ii), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information (as
defined herein)) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Underwriter shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time (as defined herein) or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in
the latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
2
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date
and any settlement date, the Prospectus (together with any supplement
thereto) did not or will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and the Operating
Partnership make no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter
specifically for inclusion in the Registration Statement or the Prospectus
(or any supplement thereto).
(c) The Company is a real estate investment trust duly formed and
validly existing and in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full trust power and authority to
own or lease, as the case may be, and to operate its properties and conduct
its business as described in the Prospectus, and is duly qualified to do
business as a foreign trust and is in good standing under the laws of each
jurisdiction which requires such qualification.
(d) Each of the subsidiaries of the Company, including the Operating
Partnership (collectively the "Subsidiaries"), is a corporation, trust,
limited partnership, limited liability company or general partnership duly
incorporated or formed, as the case may be, validly existing and in good
standing under the laws of the jurisdiction in which it is chartered,
formed or organized with full corporate, trust, limited liability company
or partnership power and authority, to own or lease, as the case may be,
and operate its properties, and to conduct its business as described in the
Prospectus, and is duly qualified to do business and is in good standing
under the laws of each jurisdiction which requires such qualification.
(e) All the outstanding shares of capital stock, beneficial interests,
limited liability company interests or partnership interests of each
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus or on Schedule I attached hereto, all outstanding shares of
capital stock, shares of beneficial interest, limited liability company
interests or partnership interests of the Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free and clear
of any perfected security interest or any other security interests, claims,
liens or encumbrances. The Company's percentage interest and ownership in
the Operating Partnership, and the Operating Partnership's percentage
3
interest and ownership in each of the Subsidiaries, is as set forth on
Schedule I. Except in respect of the Operating Partnership and as set forth
in the Prospectus, or on Schedule II attached hereto, no options, warrants
or other rights to purchase, agreements or obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interest in any Subsidiary are outstanding.
The Company is the sole general partner of the Operating Partnership. The
Subsidiaries set forth on Schedule I include all of the "significant
subsidiaries" of the Company, as such term is defined by Rule 1-02 of
Regulation S-X.
(f) The Company's authorized equity capitalization is as set forth in
the Prospectus; the Common Shares conform in all material respects to the
description thereof contained in the Prospectus; the outstanding Common
Shares have been duly and validly authorized and issued and are fully paid
and nonassessable; the Securities being sold hereunder by the Company have
been duly and validly authorized, and, when issued and delivered to and
paid for by the Underwriter pursuant to this Agreement, will be fully paid
and nonassessable; the certificates for the Securities are in valid and
sufficient form; the holders of outstanding shares of beneficial interest
of the Company are not entitled to preemptive or other rights to subscribe
for the Securities and, except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any securities
for, shares of beneficial interest or ownership interests in the Company
are outstanding.
(g) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required; and the statements in the Prospectus under the headings
"Description of shares of Beneficial Interest," "Certain Provisions of
Maryland Law and our Declaration of Trust and Bylaws," "Federal Income Tax
Considerations" and "Risk Factors - Our Status as a REIT is dependent on
compliance with federal income tax requirements," insofar as such
statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
(h) This Agreement has been duly authorized, executed and delivered by
the Company and the Operating Partnership.
(i) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended.
4
(j) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriter in the manner contemplated herein and in the
Prospectus.
(k) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of the Subsidiaries pursuant to (i) the Declaration
of Trust, charter or by-laws, partnership agreements, operating agreements
or other organizational documents of the Company or any of the
Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
of the Subsidiaries is a party or bound or to which its or their property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its
Subsidiaries or any of its or their properties.
(l) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(m) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Prospectus
and the Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption "Selected
Financial Information" in the Prospectus and Registration Statement fairly
present, on the basis stated in the Prospectus and the Registration
Statement, the information included therein.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, the Operating Partnership or any of the other Subsidiaries, or any
of their respective partners, directors, trustees or officers in their
capacity as such, or to which the Company, the Operating Partnership or any
of the other Subsidiaries or its or their property is pending or, to the
best knowledge of the Company and the Operating Partnership, threatened
5
that (i) could reasonably be expected to have a material adverse effect on
the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto). There are no
agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that are not
described or filed as required by the Act.
(o) Each of the Company, the Operating Partnership and the Subsidiaries
owns or leases all such properties as are necessary to the conduct of its
operations as presently conducted. Each of the Company and the Operating
Partnership (either directly or through a Subsidiary) has, and after giving
effect to the transactions described in the Registration Statement and
Prospectus will have, good and marketable and insurable title to all real
property described in, or that secure indebtedness identified in, the
Prospectus as being or to be owned by it, free and clear of all liens,
claims, security interests or other encumbrances except such as are
described in the Registration Statement and the Prospectus or in a document
filed as an exhibit to, or incorporated by reference in, the Registration
Statement and except those which do not and will not have a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole. All the property described in the Prospectus
as being held under lease by each of the Company and the Subsidiaries is
held by it under valid, subsisting and enforceable leases, other than those
described in the Registration Statement and the Prospectus and those which
do not and will not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results
of operations of the Company and the Subsidiaries taken as a whole.
(p) Neither the Company nor any Subsidiary is in violation or default
of (i) any provision of its Declaration of Trust, charter or bylaws,
partnership agreement, limited liability company agreement or other
organizational documents, as applicable, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or such subsidiary or
any of its properties, as applicable.
6
(q) KPMG LLP, who has audited certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
included in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(r) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Company or sale by the Company of the
Securities.
(s) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto). The Company and the Subsidiaries are organized and
operate in the manner described in the Registration Statement so that the
Company meets the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and the rules and regulations
thereunder as currently in effect. Each Subsidiary, including without
limitation, the Operating Partnership, that is a partnership or limited
liability company will be treated as a partnership, and not as an
association taxable as a corporation or a publicly traded partnership, for
federal income tax purposes.
(t) No labor problem or dispute with the employees of the Company or
any of the Subsidiaries exists or is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its Subsidiaries' principal suppliers,
contractors or customers, that could have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
7
supplement thereto) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as would
not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(u) The Company and each of the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance insuring the Company or any of the
Subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Company and the
Subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the
Company or any of the Subsidiaries under any such policy or instrument as
to which any insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor any such Subsidiary
has been refused any insurance coverage sought or applied for; and neither
the Company nor any such Subsidiary has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(v) No consolidated Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock or other equity, from
repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or assets to
the Company or any other Subsidiary of the Company, except as described in
or contemplated by the Prospectus (exclusive of any supplement thereto) and
except that the Subsidiaries that are identified as "Joint Ventures" on
Schedule I require the consent of the joint venture partners listed on
Schedule I as a condition to making such payments or transfers and except
that following an event of default under the loan documents encumbering the
properties owned by a Subsidiary such Subsidiary may be prohibited from
making distributions to the Company.
(w) The Company and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
8
respective businesses, and neither the Company nor any such Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(x) The Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(y) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(z) (i) The Company and the Subsidiaries are (A) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (B) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (C) have not
received notice of any actual or potential liability under any
environmental law, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a material
adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto). Except as set forth in the
Prospectus, neither the Company nor any of the subsidiaries has been named
as a "potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
9
(ii) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company
has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(aa) The minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder ("ERISA"), has been satisfied by each
"pension plan" (as defined in Section 3(2) of ERISA) which has been
established or maintained by the Company and/or one or more of its
subsidiaries, and the trust forming part of each such plan which is
intended to be qualified under Section 401 of the Code is so qualified;
each of the Company and its subsidiaries has fulfilled its obligations, if
any, under Section 515 of ERISA; neither the Company nor any of its
subsidiaries maintains or is required to contribute to a "welfare plan" (as
defined in Section 3(1) of ERISA) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than
"continuation coverage" (as defined in Section 602 of ERISA)); each pension
plan and welfare plan established or maintained by the Company and/or one
or more of its subsidiaries is in compliance in all material respects with
the currently applicable provisions of ERISA; and neither the Company nor
any of its subsidiaries has incurred or could reasonably be expected to
incur any withdrawal liability under Section 4201 of ERISA, any liability
under Section 4062, 4063, or 4064 of ERISA, or any other liability under
Title IV of ERISA. The assets of the Company and the Subsidiaries do not,
and as of the Closing Date will not, constitute "plan assets" under ERISA.
(bb) There is and has been no failure on the part of the Company and
any of the Company's directors or officers, in their capacities as such, to
comply with any provision of the Sarbanes Oxley Act of 2002 and the rules
and regulations promulgated in connection therewith (the "Sarbanes Oxley
Act"), including Section 402 related to loans and Sections 302 and 906
related to certifications.
10
(cc) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company and the Operating Partnership, any director,
trustee, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such Persons of the FCPA, including,
without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything
of value to any "foreign official" (as such term is defined in the FCPA) or
any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
(dd) The operations of the Company and the Subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the "Money Laundering
Laws") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company, threatened.
(ee) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, trustee, officer, agent, employee
or affiliate of the Company or any of its subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department ("OFAC"); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
11
(ff) The Company and its Subsidiaries are organized and operate in a
manner so as to enable the Company to qualify as a real estate investment
trust (a "REIT") under Sections 856 through 860 of the Code and the rules
and regulations thereunder as currently in effect, and the Company has
elected to be taxed as a REIT under the Code commencing with the taxable
year ending December 31, 1986. The Company intends to continue to qualify
as a REIT for the foreseeable future.
(gg) The Registration Statement was exempt from filing with the
National Association of Securities Dealers, Inc. pursuant to, and in full
compliance with, Conduct Rule 2710(b)(7)(C).
Any certificate signed by any officer of the Company and delivered to
the Underwriter in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company and by the Operating
Partnership, as to matters covered thereby, to the Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at a purchase price of $23.60 per share, the Underwritten
Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the Underwriter to purchase up to 300,000 Option Securities at the
same purchase price per share as the Underwriter shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriter. Said option may be
exercised in whole or in part at any time on or before the 30th day after the
date of the Prospectus upon written or telegraphic notice by the Underwriter to
the Company setting forth the number of shares of the Option Securities as to
which the Underwriter is exercising the option and the settlement date.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day (as defined
herein) prior to the Closing Date) shall be made at 10:00 AM, New York City
time, on June 18, 2003, or at such time on such later date not more than three
Business Days after the foregoing date as the Underwriter shall designate, which
date and time may be postponed by agreement between the Underwriter and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the account of the Underwriter against payment
12
by the Underwriter of purchase price of the Securities being sold by the Company
by wire transfer payable in same-day funds to the account specified by the
Company. Delivery of the Underwritten Securities and the Option Securities shall
be made through the facilities of The Depository Trust Company unless the
Underwriter shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Underwriter, at 388
Greenwich Street, New York, New York 10013, on the date specified by the
Underwriter (which shall be within three Business Days after exercise of said
option) for the account of the Underwriter, against payment by the Underwriter
of the purchase price thereof by wire transfer payable in same-day funds to the
account specified by the Company. If settlement for the Option Securities occurs
after the Closing Date, the Company will deliver to the Underwriter on the
settlement date for the Option Securities, and the obligation of the Underwriter
to purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Securities for sale to the public as set forth in the
Prospectus.
5. Agreements. The Company agrees with the Underwriter that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the Underwriter with
the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Underwriter of such timely filing. The Company will promptly advise the
Underwriter (i) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (ii) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (iii) when, prior to
13
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Prospectus or for any additional information, (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) notify the Underwriter of such event, (ii) prepare and
file with the Commission, subject to the second sentence of paragraph (a)
of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and (iii) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Underwriter an earnings statement or
statements of the Company and the Subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto as the
Underwriter may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Underwriter may designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Securities, in any jurisdiction where it is not now so
subject.
14
(f) The Company will not, without the prior written consent of the
Underwriter, offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any other shares of Common Shares or any securities convertible into, or
exercisable, or exchangeable for, Common Shares; or publicly announce an
intention to effect any such transaction, for a period of 45 days after the
date of the Underwriting Agreement; provided, however, that the Company may
issue and sell Common Shares pursuant to any employee or trustee option or
long-term incentive plan, share ownership plan or dividend purchase or
reinvestment plan of the Company in effect at the Execution Time and the
Company may issue Common Shares issuable upon the conversion or redemption
of securities or the exercise of options or warrants outstanding at the
Execution Time or the conversion or redemption of units in the Operating
Partnership outstanding at the Execution Time; or the conversion of equity
in any of the Subsidiaries identified on Schedule I as "Joint Ventures"
pursuant to and in accordance with conversion rights in effect at the
Execution Time.
(g) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and will use its best efforts to cause the Company's
trustees and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act.
(h) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriter. The obligations of
the Underwriter to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Operating
Partnership contained herein as of the Execution Time, the Closing Date and any
15
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Operating Partnership made in any certificates pursuant
to the provisions hereof, to the performance by the Company and the Operating
Partnership of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriter agrees in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM
New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York City
time on such date or (ii) 9:30 AM on the Business Day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b),
the Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have requested and caused Pepper Hamilton LLP,
counsel for the Company, to have furnished to the Underwriter their opinion
dated the Closing Date and addressed to the Underwriter to the effect set
forth in Exhibit A attached hereto. In rendering such opinion, such counsel
may rely (A) as to matters involving the application of laws of any
jurisdiction other than the States of Pennsylvania, Maryland and Delaware
or the Federal laws of the United States, to the extent they deem proper
and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriter and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company
and public officials. References to the Prospectus in this paragraph (b)
shall also include any supplements thereto at the Closing Date.
(c) The Underwriter shall have received from Proskauer Rose LLP,
counsel for the Underwriter, such opinion or opinions, dated the Closing
Date and addressed to the Underwriter, with respect to the issuance and
sale of the Securities, the Registration Statement, the Prospectus
(Underwriter together with any supplement thereto) and other related
matters as the Underwriter may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriter a certificate
of the Company, signed by the President and Chief Executive Officer and the
16
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any supplement thereto), there has been no material adverse effect on
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to have
furnished to the Underwriter, at the Execution Time and at the Closing
Date, letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Underwriter,
confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder and that they have
performed a review of the unaudited interim financial information of the
Company for the three-month period ended March 31, 2003 and as at March 31,
2003, in accordance with Statement on Auditing Standards No. 100, and
stating in effect that:
(i) in their opinion the audited consolidated financial statements
and financial statement schedules incorporated by reference in the
Registration Statement and the Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
rules and regulations adopted by the Commission;
17
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited interim
financial information for the three-month period ended March 31, 2003,
and as at March 31, 2003 incorporated by reference in the Registration
Statement and the Prospectus; carrying out certain specified procedures
(but not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the shareholders, the Board of Trustees, the
Audit Committee, the Corporate Governance Committee and the
Compensation Committee of the Company; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31, 2002, nothing came
to their attention which caused them to believe that:
(A) any unaudited financial statements incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form
10-Q and with the related rules and regulations adopted by the
Commission; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus;
(B) with respect to the period subsequent to March 31, 2003,
there were any changes, at a specified date not more than five days
prior to the date of the letter, in the par value of preferred
shares and common shares of beneficial interest issued and
outstanding, increases in consolidated debt or any decreases in
consolidated total assets or total beneficiaries' equity of the
Company as compared with the amounts shown on the March 31, 2003,
unaudited condensed consolidated balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus, or for the period from April 1, 2003 to such specified
date there were any decreases, as compared with the corresponding
period in the preceding year; in consolidated total revenue or in
the total or per share amounts of net income, except in all
instances for changes, increases or decreases that the Registration
Statement discloses have occurred or may occur, in which case the
18
letter shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Underwriter; and
(C) the information included or incorporated by reference in
the Registration Statement and Prospectus in response to Regulation
S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive Compensation) and Item
503(d) (Ratio of Earnings to Fixed Charges) is not in conformity
with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information set forth
under the caption "Selected Financial Data" in the Prospectus, the
information included or incorporated by reference in Items 1, 2, 6, 7
and 11 of the Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Underwriter, so material
19
and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the
Underwriter such further information, certificates and documents as the
Underwriter may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized
for trading on the New York Stock Exchange, and satisfactory evidence of
such actions shall have been provided to the Underwriter.
(j) At the Execution Time, the Company shall have furnished to the
Underwriter a letter substantially in the form of Exhibit B attached hereto
from each officer and trustee of the Company addressed to the Underwriter.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Underwriter and counsel for
the Underwriter, this Agreement and all obligations of the Underwriter hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriter. Notice of such cancelation shall be given to the Company in writing
or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Proskauer Rose LLP, counsel for the Underwriter, at
1585 Broadway, New York, New York 10036, on the Closing Date.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Underwriter, the Company will reimburse the Underwriter on demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
20
8. Indemnification and Contribution. (a) The Company and the Operating
Partnership jointly and severally agree to indemnify and hold harmless the
Underwriter, the directors, officers, employees and agents of the Underwriter
and each person who controls the Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in any Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Operating
Partnership will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by the Underwriter specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company and
the Operating Partnership may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its trustees, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of
either the Act or the Exchange Act to the same extent as the foregoing
indemnity to the Underwriter, but only with reference to written
information relating to the Underwriter furnished to the Company by the
Underwriter specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have. The Company
acknowledges that the statements set forth on the cover page regarding
delivery of the Securities and, under the heading "Underwriting," (i) the
sentences related to concessions and reallowances and (ii) the paragraph
related to stabilization, syndicate covering transactions and penalty bids
in any Preliminary Prospectus and the Prospectus constitute the only
information furnished in writing by or on behalf of the Underwriter for
inclusion in any Preliminary Prospectus or the Prospectus.
21
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Operating Partnership,
jointly and severally, and the Underwriter agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
22
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company, the Operating Partnership and the
Underwriter, may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Operating Partnership on the
one hand, and by the Underwriter on the other from the offering of the
Securities; provided, however, that in no case shall (i) the Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by the Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Operating Partnership, jointly
and severally, and the Underwriter shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Operating Partnership on the one hand and of the
Underwriter on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Operating Partnership shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company and the
Operating Partnership on the one hand or the Underwriter on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Operating Partnership and the Underwriter agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls the Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of the Underwriter shall have the same rights to contribution as the
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each trustee of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriter, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Shares shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on the New York Stock Exchange, (ii) a
23
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Underwriter, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the Operating Partnership or its officers or partners and of the
Underwriter set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Underwriter, the Operating Partnership or the Company or any of the officers,
directors, trustees, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (212) 816-7912) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 388 Greenwich Street, New York, New York, 10013, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to Brandywine Realty Trust General Counsel (fax no. 610-832-4928) and
confirmed to it at Brandywine Realty Trust, 401 Plymouth Road, Suite 500,
Plymouth Meeting, Pennsylvania 19462, attention of the Legal Department.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, trustees, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
24
16. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus referred
to in paragraph 1(i)(a) above and any preliminary prospectus included in
the Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(i)(a) above, including exhibits and financial statements,
as amended at the Execution Time (or, if not effective at the Execution
Time, in the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
25
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
* * * * * *
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Operating Partnership and the Underwriter.
Very truly yours,
BRANDYWINE REALTY TRUST
By: ____________________________________
Name: Gerard H. Sweeney
Title: President and Chief Executive
Officer
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its general
partner
By: ____________________________________
Name: Gerard H. Sweeney
Title: President and Chief Executive
Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: ____________________________
Name:
Title:
SCHEDULE I
----------
BRANDYWINE REALTY TRUST
SUBSIDIARIES
- -------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP
SUBSIDIARIES (Capital/Profits)
- -------------------------------------------- -----------------------------------------------
AAPOP 1, L.P., a Delaware limited AAP Sub One, Inc. -- GP - 1%
partnership
Atlantic American Properties Trust -- GP - 98%
and LP - 1%
- -------------------------------------------- -----------------------------------------------
AAPOP 2, L.P., a Delaware limited Brandywine Witmer, L.L.C. GP - 0.5%
partnership
Witmer Operating Partnership I, L.P. -- GP -
98.5% and LP - 1%
- -------------------------------------------- -----------------------------------------------
Brandywine Ambassador, L.P., a Brandywine Ambassador, L.L.C. - GP-1%
Pennsylvania limited partnership
BOP - LP 99%
- -------------------------------------------- -----------------------------------------------
Brandywine Central, L.P., a Pennsylvania Brandywine F.C., LP-- GP. - 98%
limited partnership
BTRS, Inc. -- LP. - 2%
- -------------------------------------------- -----------------------------------------------
Brandywine Croton, L.P., a Pennsylvania Brandywine Grande B, L.P.
limited partnership
LP - 99%
Brandywine Croton, LLC - GP-1%
- -------------------------------------------- -----------------------------------------------
Brandywine Dominion, L.P., a Pennsylvania Brandywine Dominion, LLC-- GP - 1%
limited partnership
BOP(1) -- LP - 99%
- -------------------------------------------- -----------------------------------------------
Brandywine F.C., L.P., a Pennsylvania Brandywine F.C., L.L.C.-- GP - 1%
limited partnership
BOP -- LP-- 99%
- -------------------------------------------- -----------------------------------------------
Brandywine Grande B, L.P., a Delaware Brandywine Grande B Corp.-- GP - 1%
limited partnership
BOP -- LP - 99%
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP
SUBSIDIARIES (Capital/Profits)
- -------------------------------------------- -----------------------------------------------
Brandywine Grande C, L.P., a Delaware Brandywine Grande C Corp. - GP 1%
limited partnership
BOP - LP - 99%
- -------------------------------------------- -----------------------------------------------
Brandywine I.S., L.P., a Pennsylvania Brandywine I.S., LLC-- GP - 1%
limited partnership
BOP -- LP 99%
- -------------------------------------------- -----------------------------------------------
Brandywine Metroplex, L.P., a Pennsylvania Brandywine Metroplex, LLC - GP - 1%
limited partnership
BOP - LP - 99%
- -------------------------------------------- -----------------------------------------------
Brandywine Norriton, L.P., a Pennsylvania Brandywine Norriton, L.L.C.-- GP 1%
limited partnership
BOP -- 99%
- -------------------------------------------- -----------------------------------------------
Brandywine Operating Partnership, L.P., a BRT -- GP and LP(2)
Delaware limited partnership
LP's (other than BRT)(2)
- -------------------------------------------- -----------------------------------------------
Brandywine P.M., L.P., a Pennsylvania Brandywine P.M., LLC -- GP - 1%
limited partnership
BOP -- LP 99%
- -------------------------------------------- -----------------------------------------------
Brandywine TB Florig, L.P., a Pennsylvania Brandywine TB Florig, LLC - GP - 1%
limited partnership
BOP -- LP 99%
- -------------------------------------------- -----------------------------------------------
Brandywine TB Inn, L.P., a Pennsylvania Brandywine TB Inn, L.L.C. -- GP - 1%
limited partnership
BOP - LP 99%
- -------------------------------------------- -----------------------------------------------
Brandywine TB I, L.P., a Pennsylvania Brandywine TB I LLC -- GP - 1%
limited partnership
BOP -- LP - 99%
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP
SUBSIDIARIES (Capital/Profits)
- -------------------------------------------- -----------------------------------------------
Brandywine TB II, L.P., a Pennsylvania Brandywine TB II LLC -- GP - 1%
limited partnership
BOP -- LP - 99%
- -------------------------------------------- -----------------------------------------------
Brandywine TB V, L.P., a Pennsylvania Brandywine TB V, L.L.C. -- GP - 1%
limited partnership
BOP -- LP - 99%
- -------------------------------------------- -----------------------------------------------
Brandywine TB VI, L.P., a Pennsylvania Brandywine TB VI, L.L.C. -- GP - 1%
limited partnership
BOP -- LP - 99%
- -------------------------------------------- -----------------------------------------------
Brandywine TB VIII, L.P., a Pennsylvania Brandywine TB VIII, L.L.C. - GP - 1%
limited partnership
BOP -- LP-99%
- -------------------------------------------- -----------------------------------------------
C/N Iron Run Limited Partnership III, a BOP -- GP - 2%
Pennsylvania limited partnership
BOP -- LP - 87%
WOP(3) -- LP - 11%
- -------------------------------------------- -----------------------------------------------
C/N Leedom Limited Partnership II, a BOP -- GP - 89%
Pennsylvania limited partnership
WOP -- LP - 11%
- -------------------------------------------- -----------------------------------------------
C/N Oaklands Limited Partnership I, a WOP -- GP - 88.9%
Pennsylvania limited partnership
BOP -- LP - .1%
WOP -- LP - 11%
- -------------------------------------------- -----------------------------------------------
C/N Oaklands Limited Partnership III, a BOP -- GP - 2%
Pennsylvania limited partnership
BOP -- LP - 87%
WOP -- LP - 11%
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP
SUBSIDIARIES (Capital/Profits)
- -------------------------------------------- -----------------------------------------------
Eight Oliver/Brandywine Partner, L.P., a Brandywine TB VIII L.P. - LP - 50%
Pennsylvania limited partnership
Donald W. Pulver LP - 1%
Eight Oliver Tower Associates - GP - 49%
- -------------------------------------------- -----------------------------------------------
e-Tenants.com Holding, L.P., a BOP - GP - 99%
Pennsylvania limited partnership
BTRS, Inc. - LP - 1%
- -------------------------------------------- -----------------------------------------------
Fifteen Horsham, L.P., a Pennsylvania WOP -- GP - 1%
limited partnership
BOP -- LP 1%
WOP -- LP - 98%
- -------------------------------------------- -----------------------------------------------
Iron Run Limited Partnership V, a BOP -- GP - 2%
Pennsylvania limited partnership
BOP -- LP - 87%
WOP -- LP - 11%
- -------------------------------------------- -----------------------------------------------
LC/N Horsham Limited Partnership, a WOP -- GP - 88.9%
Pennsylvania limited partnership
BOP -- LP - .1%
WOP -- LP - 11%
- -------------------------------------------- -----------------------------------------------
LC/N Keith Valley Limited Partnership I, a WOP -- GP - 88.9%
Pennsylvania limited partnership
BOP -- LP - .1%
WOP -- LP - 11%
- -------------------------------------------- -----------------------------------------------
Newtech IV Limited Partnership, a WOP -- GP - 88.9%
Pennsylvania limited partnership
BOP -- LP - .1%
WOP -- LP - 11%
- -------------------------------------------- -----------------------------------------------
Nichols Lansdale Limited Partnership III, WOP -- GP - 88.9% / 98.9%
a Pennsylvania limited partnership
BOP -- LP - 11.1% / 1.1%
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP
SUBSIDIARIES (Capital/Profits)
- -------------------------------------------- -----------------------------------------------
Witmer Operating Partnership I, L.P., a Brandywine Witmer, LLC -- GP - 1% /1%
Delaware limited partnership
BOP -- LP - 99% / 99%
- -------------------------------------------- -----------------------------------------------
100 Arrandale Associates, L.P., a BOP -- GP -- 2% / 2%
Pennsylvania limited partnership(4)
BOP -- LP -- 87% / 97%
Prentiss -- 11% / 1%
- -------------------------------------------- -----------------------------------------------
111 Arrandale Associates, L.P., a BOP -- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP -- LP -- 87% / 97%
Prentiss -- 11% / 1%
- -------------------------------------------- -----------------------------------------------
440 Creamery Way Associates, L.P., a BOP -- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP -- LP -- 87% / 97%
Prentiss -- 11% / 1%
- -------------------------------------------- -----------------------------------------------
442 Creamery Way Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP -- LP -- 87% / 97%
Prentiss -- 11% / 1%
- -------------------------------------------- -----------------------------------------------
481 John Young Way Associates, L.P., a BOP -- GP -- 2% / 2%
Pennsylvania limited partnership(4)
BOP -- LP -- 87% / 97%
Prentiss -- 11% / 1%
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
GENERAL PARTNERSHIP OWNERSHIP STRUCTURE
- -------------------------------------------- -----------------------------------------------
Brandywine 55 Ames Court Partnership, a Brandywine Axinn I, LLC -- GP - 50%
New York general partnership
Brandywine Axinn II, LLC -- GP - 50%
- -------------------------------------------- -----------------------------------------------
Brandywine Engineers Lane Partnership, a Brandywine Axinn I, LLC -- GP - 50%
New York general partnership
Brandywine Axinn II, LLC -- GP - 50%
- -------------------------------------------- -----------------------------------------------
Brandywine Broad Street Partnership, a New Brandywine Axinn I, LLC -- GP - 50%
York general partnership
Brandywine Axinn II, LLC -- GP - 50%
- -------------------------------------------- -----------------------------------------------
Interstate Center Associates, a Virginia BOP -- 50%
general partnership
Brandywine Interstate 50, L.L.C. - 50%
54-1815494
- -------------------------------------------- -----------------------------------------------
Iron Run Venture II, a Pennsylvania Atlantic American Land Development, Inc. -
general partnership 44.2617%
AAPOP 1, LP - GP - 55.7383%
- -------------------------------------------- -----------------------------------------------
IR Northlight II Associates, a AAPOP 2, LP -- GP - 50%
Pennsylvania general partnership
BOP -- GP - 50%
23-2926116
- -------------------------------------------- -----------------------------------------------
Plymouth TFC, General Partnership, a Brandywine P.M. LP -- GP - 50%
Pennsylvania general partnership
WOP -- 50%
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
- -------------------------------------------- -----------------------------------------------
AAP Sub One, Inc., a Delaware corporation Atlantic American Properties Trust - 100%
- -------------------------------------------- -----------------------------------------------
Atlantic American Land Development, Inc., AAPOP 1, LP - 100%
a Delaware corporation
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
- -------------------------------------------- -----------------------------------------------
Brandywine Grande B Corp., a Delaware BRT -- 100%
corporation
- -------------------------------------------- -----------------------------------------------
Brandywine Grande C Corp., a Delaware BRT 100%
corporation
- -------------------------------------------- -----------------------------------------------
Brandywine Holdings, I, Inc., a BRT -- 100%
Pennsylvania corporation
- -------------------------------------------- -----------------------------------------------
Brandywine Realty Services Corporation, a BOP -- 9,500 Common Shares
Pennsylvania corporation
BRSP(8) -- 500 Common Shares
- -------------------------------------------- -----------------------------------------------
BTRS, Inc., a Delaware corporation BOP - 100%
- -------------------------------------------- -----------------------------------------------
Southpoint Land Holdings, Inc., a BOP -- 89 Shares
Pennsylvania corporation(7)
Prentiss - 11 Shares
- -------------------------------------------- -----------------------------------------------
Valleybrooke Land Holdings, Inc., a BOP -- 89 Shares
Pennsylvania corporation(7)
Prentiss - 11 Shares
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
- -------------------------------------------- ------------------------------------------------
Brandywine Ambassador, L.L.C., a BOP - 100%
Pennsylvania limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Axinn I, LLC, a Delaware BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
- -------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
- -------------------------------------------- ------------------------------------------------
Brandywine Axinn II, LLC, a Delaware BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Brokerage Services, LLC, a New BRSCO - - 100%
Jersey limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Charlottesville LLC, a Virginia BOP - 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Christina LLC, a Delaware BOP - 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Croton, LLC, a Pennsylvania Brandywine Grande B, L.P. - 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Dabney, L.L.C., a Delaware BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Dominion, L.L.C., a BOP -- 100%
Pennsylvania limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine F.C., L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine I.S., L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Interstate 50, L.L.C., a BOP -- 100%
Delaware limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine - Main Street, LLC, a Delaware BOP -- 99%
limited liability company
Brandywine Acquisitions, LLC -- 1%
- -------------------------------------------- ------------------------------------------------
Brandywine Metroplex LLC., a Pennsylvania BOP - 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
- -------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
- -------------------------------------------- ------------------------------------------------
Brandywine Norriton, L.L.C., a BOP -- 99%
Pennsylvania limited liability company
Norriton Corp. -- 1%
- -------------------------------------------- ------------------------------------------------
Brandywine P.M., L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Piazza, L.L.C., a New Jersey BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Plaza 1000, L.L.C., a New BOP -- 100%
Jersey limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Promenade, L.L.C., a New Jersey BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine TB Florig, LLC, a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine TB Inn, L.L.C., a Pennsylvania BOP - 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine TB I, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine TB II, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine TB V, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine TB VI, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
- -------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
- -------------------------------------------- ------------------------------------------------
Brandywine TB VIII, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Trenton Urban Renewal, L.L.C., BOP - BRT
a Delaware limited liability company
- -------------------------------------------- ------------------------------------------------
Brandywine Witmer, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
- -------------------------------------------- ------------------------------------------------
Christiana Center Operating Company I LLC, BOP -- Member - 100%
a Delaware limited liability company
- -------------------------------------------- ------------------------------------------------
Christiana Center Operating Company II BOP -- Member - 100% LLC,
a Delaware limited liability company
- -------------------------------------------- ------------------------------------------------
Christiana Center Operating Company III BOP -- Member - 100% LLC,
a Delaware limited liability company
- -------------------------------------------- ------------------------------------------------
e-Tenants LLC, a Delaware limited e-Tenants.com Holding, L.P.
liability company
- -------------------------------------------- ------------------------------------------------
- -------------------------------------------- -----------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
- -------------------------------------------- -----------------------------------------------
Brandywine Industrial Partnership, L.P., a BB&K GP, BB&K LP Business Trust, BOP and
Delaware limited partnership Nichols Lansdale Limited Partnership III
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
- -------------------------------------------- -----------------------------------------------
1000 Chesterbrook Boulevard Partnership, a Brandywine Dominion, LP -- GP - 50%
Pennsylvania general partnership
- -------------------------------------------- -----------------------------------------------
PJP Building Two, L.C., a Virginia limited Brandywine Charlottesville, LLC -- 30%
liability company
Pavilion Holdings, LLC -- 20%
Worrell Land Development Company, L.C. f/k/a
Worrell Land and Cattle Company, L.C. -- 50%
- -------------------------------------------- -----------------------------------------------
PJP Building Five, L.C., a Virginia Brandywine Charlottesville, LLC -- 25%
limited liability company
Pavilion Holdings, LLC -- 25%
Worrell Land and Development Company, L.C. --
50%
- -------------------------------------------- -----------------------------------------------
Two Tower Bridge Associates, a Brandywine TB II, LP -- GP - 35%
Pennsylvania limited partnership
- -------------------------------------------- -----------------------------------------------
Four Tower Bridge Associates, a Brandywine TB I, LP -- GP - 65%
Pennsylvania limited partnership
- -------------------------------------------- -----------------------------------------------
Five Oliver/Brandywine Partner, L.P., a Brandywine TB V, L.P. -- GP - 50%
Pennsylvania Limited Partnership
Five Oliver Tower Associates -- GP - 49%
Donald W. Pulver -- LP - 1%
- -------------------------------------------- -----------------------------------------------
Five Tower Bridge Associates, a Five Oliver/Brandywine Partner, L.P. -- LP
Pennsylvania limited partnership -- 30%
- -------------------------------------------- -----------------------------------------------
Six Tower Bridge Associates, a Brandywine TB VI, LP -- GP - 65%
Pennsylvania limited partnership
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
- -------------------------------------------- -----------------------------------------------
Eight Tower Bridge Development Associates, Eight Oliver/Brandywine Partner, L.P. -- GP --
a Pennsylvania limited partnership 11% [A BRT subsidiary, Brandywine TB VIII,
L.P., is a 50% limited partner in this entity.]
Eight Tower Bridge - VEF II, LLC -- LP -- 89%
- -------------------------------------------- -----------------------------------------------
Tower Bridge Inn Associates, a Brandywine TB Inn, L.P.-- GP - 50%
Pennsylvania limited partnership
Oliver Tower Inn Associates -- GP - 23.1829%
Tower Bridge Partners -- LP - 23.1889%
Centre Consho, LLC -- LP - 3.6222%
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -----------------------------------------------
CONDOMINIUM UNIT OWNERS
- -------------------------------------------- -----------------------------------------------
Allendale Road Corporate Center, a BOP owns all units
Pennsylvania Condominium Association
- -------------------------------------------- -----------------------------------------------
Greentree Executive Campus 1001-03 BOP owns 2 units
Association, Inc., a New Jersey non-profit
corporation 1001 Greentree Associates, L.L.C. owns 1 Unit.
- -------------------------------------------- -----------------------------------------------
Princeton Pike V, VI & VII Condominium BOP owns all units
Association, Inc., a New Jersey condominium
association
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- ------------------------------------------------
TRUST TRUSTEES
- -------------------------------------------- -----------------------------------------------
Atlantic American Properties Trust, a BOP -- Common Shares - 100%
Maryland real estate investment trust
100 BRT Employees -- Preferred Shares - 100%
- -------------------------------------------- -----------------------------------------------
- -------------------------------------------- -------------------------------------------------
PARENT TRUSTEES
- -------------------------------------------- -------------------------------------------------
Brandywine Realty Trust, a Maryland
real estate investment trust
- -------------------------------------------- -------------------------------------------------
(1) Brandywine Operating Partnership, LP, referred to as "BOP," is a
Delaware limited partnership.
(2) Per BOP Unit Registry.
(3) Witmer Operating Partnership I, L.P., referred to as "WOP," is a
Delaware limited partnership.
(4) The minority interest in these entities is subject to put/call rights
under which BOP will ultimately acquire the minority interests.
SCHEDULE II
-----------
List of Options, Warrants
and Other Convertible Securities
Options
-------
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Name Date of Grant Exercise Price Ending Balance
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Axinn, Don 10/6/98 24.00 50,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Axinn, Don 10/6/98 26.40 50,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 100,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Devuono, Jeff 1/2/98 25.25 6,587
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Devuono, Jeff 7/1/99 25.25 3,297
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Devuono, Jeff 1/2/98 27.78 7,708
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Devuono, Jeff 7/1/99 27.78 3,857
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Devuono, Jeff 1/2/98 29.04 8,314
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Devuono, Jeff 7/1/99 29.04 4,161
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 33,924
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Griffith, Jr., Al 1/2/98 27.78 2,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 2,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Hamer, Mark 10/6/98 24.00 50,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Hamer, Mark 10/6/98 26.40 50,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 100,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Martin, Tim 1/2/98 27.78 7,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 7,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
McCawley, Joe 1/2/98 27.78 5,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 5,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Molotsky, Brad 7/1/99 25.25 6,594
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Molotsky, Brad 1/2/98 27.78 12,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Molotsky, Brad 7/1/99 27.78 7,715
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Molotsky, Brad 1/2/98 29.04 12,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Molotsky, Brad 7/1/99 29.04 8,322
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Nichols, Jr., Tony 1/2/98 25.25 19,792
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Nichols, Jr., Tony 1/2/98 29.04 23,159
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Nichols, Jr., Tony 1/2/98 29.04 24,944
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 67,895
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Nichols, Sr., Tony 1/2/98 25.25 197,923
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Nichols, Sr., Tony 1/2/98 27.78 231,597
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Nichols, Sr., Tony 1/2/98 29.04 249,438
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 678,958
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Redd, William 6/1/99 25.25 6,726
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Redd, William 6/1/99 27.78 7,870
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Redd, William 6/1/99 29.04 8,489
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Name Date of Grant Exercise Price Ending Balance
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 23,085
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Rimikis, Tony 7/1/99 25.25 6,594
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Rimikis, Tony 1/2/98 27.78 12,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Rimikis, Tony 7/1/99 27.78 7,715
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Rimikis, Tony 1/2/98 29.04 12,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Rimikis, Tony 7/1/99 29.04 8,322
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Shadowen, Leon 6/1/99 25.25 6,726
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Shadowen, Leon 6/1/99 27.78 7,870
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Shadowen, Leon 6/1/99 29.04 8,489
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 23,085
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sowa, George 7/1/99 25.25 6,594
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sowa, George 7/1/99 27.78 7,715
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sowa, George 7/1/99 29.04 8,322
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 22,631
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sweeney, Jerry 8/8/94 6.21 13,333
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sweeney, Jerry 8/8/94 14.31 33,334
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sweeney, Jerry 7/25/02 19.50 100,000
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sweeney, Jerry 1/2/98 25.25 296,736
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sweeney, Jerry 1/2/98 27.78 347,222
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Sweeney, Jerry 1/2/98 29.04 374,531
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 1,165,156
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Yamarick, Barbara 7/1/99 25.25 6,594
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Yamarick, Barbara 1/2/98 27.78 12,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Yamarick, Barbara 7/1/99 27.78 7,715
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Yamarick, Barbara 1/2/98 29.04 12,500
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Yamarick, Barbara 7/1/99 29.04 8,322
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Grand Total 2,372,627
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
WARRANTS
--------
- ------------------------------------------------------------ ---------------------------------------------------------
Name Number of Underlying Common Shares
- ------------------------------------------------------------ ---------------------------------------------------------
Five Arrows Realty Securities L.L.C. 500,000
- ------------------------------------------------------------ ---------------------------------------------------------
Total
- ------------------------------------------------------------ ---------------------------------------------------------
UNITS
-----
- ----------------------------------------------------------------------------------------------------------------------
Totals for All Units
- ----------------------------------------------------------------------------------------------------------------------
Total General Partnership Units Outstanding: 35,121,101
- ------------------------------------------------------------------------ ---------------------------------------------
Total Class A Limited Partnership Units Outstanding: 2,340,212
- ------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to BRT 603,005
- ------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to Holdings I 5
- ------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to outside limited partners 1,737,202
- ------------------------------------------------------------------------ ---------------------------------------------
Total Reserved Units for redemption/conversion of Series A Preferred 1,415,094 Units
Mirror Units:
- ------------------------------------------------------------------------ ---------------------------------------------
Total Reserved Units for redemption conversion of Series B Preferred 3,679,245 Units
Units:
- ------------------------------------------------------------------------ ---------------------------------------------
Total Series A Preferred Mirror Units Outstanding: 750,000 Units
- ------------------------------------------------------------------------ ---------------------------------------------
Total Series B Preferred Units Outstanding 1,950,000 Units
- ------------------------------------------------------------------------ ---------------------------------------------
Total Series C Preferred Mirror Units Outstanding: 4,375,000 Units
- ------------------------------------------------------------------------ ---------------------------------------------
OTHER
-----
Partners in 1000 Chesterbrook Boulevard Partnership have the right,
under certain circumstances, to have the partnership interests valued and to
convert these interests into Class A Units of Brandywine Operating Partnership,
L.P.
EXHIBIT A
---------
1. The Company is a real estate investment trust duly formed and
existing under and by virtue of the laws of the State of Maryland and is in good
standing under the laws of the State of Maryland, including with the State
Department of Assessments and Taxation of Maryland. The Company has the full
trust power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business as described in the Registration
Statement and the Prospectus requires such registration or qualification, except
where the failure to so qualify would not have a material adverse effect on the
condition (financial or otherwise), business, prospects, properties or earnings
of the Company.
2. Each of the Subsidiaries is a corporation, limited liability
company, limited partnership or general partnership duly incorporated or formed,
as the case may be, validly existing and in good standing, as the case may be,
under the laws of its jurisdiction of incorporation or formation, with full
corporate, limited liability company, or partnership power and authority, as the
case may be, to own, lease, and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its business in each jurisdiction or
place where the nature of its properties or the conduct of its business as
described in the Registration Statement and the Prospectus requires such
registration or qualification, except where the failure to so qualify would not
have a material adverse effect on the condition (financial or otherwise),
business, prospects, properties or earnings of such Subsidiary.
3. The authorized beneficial interest of the Company (including,
but not limited to, any options, warrants or other securities convertible into
or exchangeable shares of beneficial interest of the Company) is as set forth in
the Registration Statement and the Prospectus Supplement, and the Shares conform
in all material respects to the description thereof in the Registration
Statement and the Prospectus Supplement. All the outstanding shares of
beneficial interest of the Company outstanding prior to the issuance of the
Shares have been duly and validly authorized and issued, are fully paid and
nonassessable, and are free of any preemptive or other rights to subscribe for
the Shares under Maryland law.
4. The Shares have been duly and validly authorized and, when
issued and delivered to the Underwriter against payment therefor in accordance
with the terms of the Agreement, will be validly issued, fully paid and
nonassessable and free of any preemptive or other rights to subscribe for the
Shares under Maryland law.
5. To our knowledge after due inquiry, except as set forth on
Schedule I to the Officer's Certificate, there are no outstanding options,
warrants or other rights to purchase, calling for the issuance of, or any
commitment, plan or arrangement to issue, any shares of beneficial interest of
the Company or any security or other right or obligation convertible into or
exchangeable or exercisable for shares of beneficial interest of the Company.
There is no holder of any security of the Company or any other person who has
the statutory right or, to our knowledge, the contractual or other right, to
cause the Company to sell or otherwise issue to him, or to permit him to
underwrite the sale of, the Shares or the right to have any Common Shares or
other securities of the Company included in the Registration Statement or the
right, as a result of the filing of the Registration Statement or sale of the
Shares as provided in the Agreement, to require registration under the Act of
any Common Shares or other securities of the Company.
6. All of the outstanding units of limited and general
partnership interests of the Operating Partnership (the "Units"), and the
partnership and membership interests in each of the other Subsidiaries that is a
partnership or limited liability company, as the case may be, were created under
the agreements forming the Operating Partnership and such other Subsidiaries, as
the case may be, and all of the issued and outstanding shares of capital stock
of each of the Subsidiaries that is a corporation have been duly authorized and
validly issued, and are fully paid and nonassessable. To our knowledge after due
inquiry, except as described in the Registration Statement and the Prospectus
(or any amendment or supplement thereto) or Schedule II to the Officer's
Certificate, all such Units, partnership interests and shares of capital stock
are owned by the Company directly, or indirectly through one of the
Subsidiaries, free and clear of any security interest, lien, adverse claim,
equity or other encumbrance, and, to our knowledge after due inquiry, the
Company's ownership interest in the Operating Partnership, and the Company's and
the Operating Partnership's respective ownership interest in each of the
Subsidiaries, is as set forth on Schedule II attached hereto (without giving
effect to the issuance of the Shares). Except as described in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), there are
no outstanding options, warrants or other rights to purchase, calling for the
issuance of, or any commitment, plan or arrangement to issue, any equity
interests in any Subsidiary, or any security or other right or obligation
convertible into or exchangeable or exercisable for any such interests in any
such Subsidiary. The terms of the Units conform in all material respects to
statements and descriptions thereof contained in the Registration Statement and
the Prospectus. The Company is the sole general partner of the Operating
Partnership. The Subsidiaries set forth on Schedule II attached hereto include
all of the "significant subsidiaries" of the Company, as such term is defined by
Rule 1-02 of Regulation S-X.
7. The Company has the full trust power and authority, and the
Operating Partnership has the requisite partnership power and authority, to
enter into the Agreement, and in the case of the Company, to issue, sell and
deliver the Shares to the Underwriter as provided in the Agreement, and the
Agreement has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, as applicable, and is the legal, valid
and binding agreement of each of the Company and the Operating Partnership, as
applicable, enforceable against them in accordance with its terms.
8. The form of certificate representing the Common Shares is in
due and proper form and complies in all material respects with all applicable
Maryland statutory requirements.
9. To our knowledge after due inquiry, neither the Company nor
any of the Subsidiaries is in violation of its respective Declaration of Trust,
certificate or articles of incorporation or bylaws, partnership agreement,
operating agreement or other organizational documents or is in default in the
performance of any material obligation, agreement or condition contained in any
bond, debenture, note or other evidence of indebtedness.
10. With respect to the Company and the Subsidiaries, neither the
offer, sale or delivery of the Shares, the execution, delivery or performance of
the Agreement, nor the consummation of the transactions contemplated thereby by
the Company or the Subsidiaries, as applicable: (i) required or requires, with
respect to the Company or the Subsidiaries, any consent, approval, authorization
or other order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official, or the New
York Stock Exchange (except (a) such as has been made or obtained and (b) as to
state securities or Blue Sky laws, as to which we express no opinion); (ii)
conflicted with or conflicts with, constituted or constitutes, or resulted in or
results in, a breach or violation of, or a default under, the Declaration of
Trust, Articles Supplementary, certificate or articles of incorporation or
bylaws, partnership agreement or other organizational documents, of any of such
entities, or under any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition covenant or
instrument to which any of such entities is a party or by which any of them or
any of their respective properties or assets are bound or subject to; (iii)
violated or violates any statute, law, rule, regulation, judgment, injunction,
order or decree applicable to any of such entities or any of their respective
properties or assets; or (iv) resulted or will result in the creation or
imposition of any lien, charge or encumbrance upon the property or assets of any
of such entities pursuant to the terms of any agreement or instrument to which
any of them is a party or by which any of them may be bound or to which any of
the property or assets of any of them is subject.
11. Neither the Company nor any of the Subsidiaries is, and after
giving effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus (and any amendment or supplement
thereto) will be, an "investment company" as defined in the Investment Company
Act of 1940, as amended.
12. To our knowledge after due inquiry, (i) there are no pending
or threatened actions, suits or proceedings against the Company or any of the
Subsidiaries or any of their respective trustees, directors or officers in their
capacity as such, or to which the Company or any of the Subsidiaries or any of
their respective trustees, directors or officers in their capacity as such, or
any of their respective properties or assets, is subject, that are of a
character which is required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) other than any that are
described or incorporated therein by reference and (ii) there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Act.
13. The statements in the Registration Statement and Prospectus
Supplement set forth under the headings "Description of Shares of Beneficial
Interest", "Certain Provisions of Maryland Law and of our Declaration of Trust
and Bylaws" and "Federal Income Tax Considerations", and the statements in the
Company's Annual Report on Form 10-K for the year ended December 31, 2002 and
incorporated by reference in the Registration Statement under the heading "Risk
Factors--Our status as a REIT is dependent on compliance with federal income tax
requirements", to the extent they constitute matters of law or descriptions or
summaries of contracts, agreements or other legal documents, or refer to or
constitute statements of matters of law, descriptions of statutes, rules or
regulations, or legal conclusions, each, respectively, are accurate and fair
summaries of the information disclosed therein.
14. The Registration Statement has become effective under the Act
and any required filing of the Prospectus (or any amendment or supplement
thereto) pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b). To our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened and the Registration Statement
and the Prospectus (or any amendment or supplement thereto) (other than the
financial statements and other financial and statistical information contained
therein, as to which we express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder. We have no reason to believe that on the
Effective Date or the date the Registration Statement was last deemed amended
the Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of its date
and on the Closing Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (in each case, other than the financial statements and
other financial and statistical information contained therein, as to which we
express no opinion).
15. The Shares are duly listed, admitted and authorized for
trading on the New York Stock Exchange, subject to official notice of issuance.
16. The Company was organized in conformity with the requirements
for qualification as a REIT for federal income tax purposes, and, based on the
facts and assumptions set forth in the Prospectus (and any amendment or
supplement thereto) and certain representations by the Company regarding certain
federal income tax matters, its method of operation has enabled it, and its
proposed method of operation will enable it, to meet the requirements under the
Internal Revenue Code of 1986, as amended, for qualification and taxation as a
REIT.
EXHIBIT B
---------
Form of Lock-Up Agreement
-------------------------
[Letterhead of officer or trustee of
the Company]
Brandywine Realty Trust
-----------------------
Public Offering of Common Shares
--------------------------------
June ___, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Brandywine Realty
Trust, a real estate investment trust organized under the laws of Maryland (the
"Company"), Brandywine Operating Partnership, L.P., a Delaware limited
partnership, and you as the underwriter named therein (the "Underwriter"),
relating to an underwritten public offering of common shares of beneficial
interest, par value $.01 per share (the "Common Shares"), of the Company.
In order to induce you to enter into the Underwriting Agreement, the
undersigned will not, without the prior written consent of the Underwriter,
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the undersigned or any
affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the Securities
and Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of beneficial interest in the Company or any
securities convertible into, or exercisable or exchangeable for such shares of
beneficial interest, or publicly announce an intention to effect any such
transaction, for a period of 45 days after the date of the Underwriting
Agreement, other than Common Shares disposed of as bona fide gifts approved by
the Underwriter.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer or trustee]
[Name and address of officer or trustee]